THIS DINE EASY MASTER “SOFTWARE AS A SERVICE” AGREEMENT Agreement (“Agreement”) is made and entered into between DINE EASY HOLDINGS INC. (“Company”) with a place of business at Suite 301, 134 Abbott St, Vancouver, BC V6B 2K4, Canada, and customer stated in the applicable Order Form (“Customer”) (individually a “Party”; collectively, the “Parties”).
By agreeing to an Order Form (as defined below) referencing this Agreement or by accessing or using the Services offered by the Company, the Customer is confirming that the Customer has read, understood and accepted this Agreement. This Agreement may be modified from time to time in accordance with Section 10.3 below. Customer is responsible for regularly reviewing the most current version of this Agreement, which is published at: dineeasy.ca/dmsa. When the Company changes this Agreement, Company will update the “Last Modified” date above.
WHEREAS, Company is in the business of offering software-as-a-service to clients in the delivery service industry by providing access to its proprietary business application software and related services, as further described at dineeasy.ca (“Company’s Services”); and
WHEREAS, Customer desires to access the Services, and Company desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. Capitalized terms used in this Agreement shall have the respective meanings ascribed thereto in this Agreement, including in any applicable Order Form.
1.1.1. “Company IP” means the Services, and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property provided to Customer or any Authorized User (as defined below) in connection with the foregoing. For the avoidance of doubt, Company IP includes aggregated statistics and any information, data, or other content derived from Company’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data (as defined below).
1.1.2. “Order Form” means a written document executed or agreed to by the Parties that specifies the Service, subscription period, Fees and other additional commercial terms between the Parties, substantially in the form attached hereto as Exhibit C.
1.1.3. “Services” means the subscription(s) pursuant to one or more Order Form(s) to the Company’s Services.
2. SAAS SERVICES AND SUPPORT
2.1. Company shall provide the Services and such other functions and responsibilities specified in this Agreement and any applicable Order Form, as they may be supplemented, enhanced, modified or replaced, and all updates thereto, during the Term (as defined below) pursuant to the terms of this Agreement.
2.2. Subject to and conditioned on Customer’s payment of Fees (as defined below) and compliance with the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by its authorized end users, including its authorized employees, consultants, contractors, and agents (“Authorized Users”) in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
2.3. Order Forms are binding on the Parties only when executed or agreed to in writing by each Party. Customer’s right to use the Services during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the Order Form(s). Services specified under an Order Form shall be provided during the term of that Order Form.
2.4. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms, attached hereto as Exhibit A. As part of the registration process, Customer will create an account to access Services and identify an administrative user name and password for such account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
2.5. Subject to the terms hereof, Company will provide Customer with reasonable technical support in accordance with the terms set forth in Exhibit B.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”), in who or in part; (ii) copy, modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services), in whole or in part; (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (v) remove any proprietary notices or labels; or (vi) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
3.2. Customer represents, covenants, and warrants that Customer will not use the Services for any purposes beyond the scope of the access granted in this Agreement and will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.3. The successful operation of the Service is dependent on Customer’s use of proper procedures and systems and input of correct data. Customer agrees that it shall have the sole responsibility for inputting, protecting and backing up their original data used in connection with the Service. The Customer is responsible for providing Company with the necessary information to appropriately integrate with the system and deliver all portions of the contract. Customer is solely responsible for the accuracy and adequacy of the information and data that it furnishes to Company for use with the Service, and Company is not responsible for reductions in Service quality due to Customer action or inaction.
3.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, devices, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.5. Customer shall comply with all applicable local, state, provincial, federal and foreign laws in using the Service.
3.6. Customer is solely responsible for (i) providing terms of service to its end users in respect of use of the Service by Customer’s end users (which shall be an agreement solely between Customer and such end user); and (ii) obtaining the requisite permission from end users for the use, storage and processing of their personal information by Company through the provision of the Services.
3.7. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Company IP, (B) Customer’s or any Authorized User’s use of the Company IP disrupts or poses a security risk to the Company IP or to any other customer or vendor of Company, (C) Customer, or any Authorized User, is using the Company IP for fraudulent or illegal activities, (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Company’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Customer to access the Services (any such suspension, a “Service Suspension”). Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP.
4.3 Customer shall own all right, title and interest in and to the Customer Data. Customer Data shall include all data entered by end users through the Service at Customer’s request, but shall not include “tombstone” information of such end users such as user name, name, telephone number, email address and password (“Tombstone Information”). Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services (as defined in Order Form) or support, and (c) all intellectual property rights related to any of the foregoing; and (d) all Tombstone Information.
4.4 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.5 Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Company IP.
5. PAYMENT OF FEES
5.1 Customer will pay Company the then applicable fees described in any applicable Order Form for the respective Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the Order Form, if any, or otherwise requires the payment of additional Fees (per the terms of this Agreement or the Order Form), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein or therein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term or then-current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or a future credit. All Fees are non-refundable once paid.
5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
5.3 All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.
5.4 Company will be billed according to payment schedules set out in any applicable Order Form.
6. TERM AND TERMINATION
6.1 Subject to any earlier termination as provided below, this Agreement will commence on the date Customer agrees to an Order Form, and will continue in effect for the term described in such Order Form (the “Term”). Except as expressly stated otherwise in the applicable Order Form, each Order Form will automatically renew for subsequent one-year renewal periods unless either Party gives written notice to the other Party of non-renewal at least sixty (60) days’ prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either Party may also terminate this Agreement upon fifteen (15) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and has not cured such material breach within such notice period. Notwithstanding anything to the contrary, Customer will be responsible to pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
7.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.2 NOTWITHSTANDING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 Company shall have no liability or responsibility with respect to any portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.
8.2 If, due to a claim of infringement against the Company, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid but unused fees for the Service.
8.3 Customer shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any and all losses, damages, liabilities, costs (including legal fees) resulting from any third-party claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any third-party claims based on Customer’s or any Authorized User’s (i) negligence or wilful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Company or authorized by Company in writing; or (iv) modifications to the Services not made by Company, provided that Customer may not settle any third-party claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such third-party claim or to participate in the defence thereof by counsel of its own choice.
9. LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND SUBJECT TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY OR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.
10.3 Company may modify, amend or change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on dineeasy.ca/dmsa. It is important for Customer to review this Agreement before using Services and from time to time, though the Company will use reasonable efforts to notify the Customer of any changes that, in Company’s sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and Customer’s continued use of the Services after any such changes become effective will constitute Customer’s consent to such changes.
10.4 Company may transfer and assign any of its rights and obligations under this Agreement without consent.
10.5 This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
10.6 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
10.7 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.8 This Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to its conflict of laws provisions.
10.9 Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of British Columbia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
10.9 Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
The Services shall be available 99.9%, measured monthly, excluding scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 0.1% of annual Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
If any service issue should arise throughout the duration of service, all issue shall be marked and prioritized as follows:
- Fatal (Complete degradation — 30 Minute response time during Support Hours (see Exhibit B)). All users and critical functions affected.
- Severe (significant degradation — 90 Minutes response time during Support Hours). Large percentage of users or critical functions affected.
- Medium (limited degradation — 3 hour response time during Support Hours). Limited number of users or non-critical functions affected. Business processes can continue.
- Minor (small degradation — 4 hour response time during Support Hours). One user affected. Business processes can continue.
Company will provide support to Customer via electronic mail, chat, and over phone during weekdays between 8am PST – 6pm PST (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org.
Company will use commercially reasonable efforts to respond to all helpdesk tickets within one business day.
The terms and conditions set out at dineeasy.ca/dmsa (“Agreement”) apply to this Order Form (“Order Form”) between DINE EASY HOLDINGS INC (“Company”) and [INSERT CUSTOMER NAME] (“Customer”) (collectively the “Parties” or individually a “Party”). The effective date of this Order Form is [INSERT DATE] (“Order Form Effective Date”). This Order Form shall be deemed incorporated by reference to the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, Company and Customer hereby agree as follows:
Services: [INSERT SERVICES]
Services Fees: [INSERT SERVICES FEES]. The Company will be billed according to the payment schedule attached as Schedule 2 hereto.
Term of this Order Form: [INSERT TERM]
Service Capacity: [INSERT SERVICE CAPACITY]
Implementation Services: Company will use commercially reasonable efforts to provide Customer the services described in the Statement of Work, attached as Schedule 1 hereto (“Implementation Services”), and Customer shall pay Company the Implementation Fee (as defined below), in advance, in accordance with the terms herein.
Implementation Fee (one-time): CA$XXX.
Miscellaneous Charges: Company will not initiate these miscellaneous costs unless written pre-approval has been provided by the Customer.
[INSERT MISC CHARGES]
IN WITNESS WHEREOF, the Parties hereto have executed this Order Form as of the Order Form Effective Date.
Dine Easy Holdings Inc.
[INSERT CUSTOMER NAME]
[INSERT STATEMENT OF WORK]
[INSERT PAYMENT SCHEDULE]